[1] In a case where co-defendant's protocol of examination of co-defendant's preparation of prosecutor's protocol recognizes the formation and arbitability in court, whether the protocol is admissible (affirmative)

[2] In a case where the defendant admitted the authenticity and voluntariness of the protocol of interrogation of the suspect as to himself, whether the protocol of interrogation of the suspect is admissible (affirmative with qualification)

[3] dispositive act and the meaning of the defrauded, which are the elements for the establishment of fraud

[4] The case holding that in the case of fraudulent conduct by means of so-called "public lease" at the location of a branch of a lease company, members of the Lease Company Management Committee shall be deemed to be the defrauded

[5] In a case where the defendant only states an unreasonable sentencing on the judgment of the court of first instance as a ground for appeal, whether the court of appeal may make a mistake of facts against the judgment of the court of first instance as a ground

[1] If the co-defendant's protocol of examination of the co-defendant's protocol of examination of the prosecutor's protocol recognizes the formation and voluntariness in the court, such protocol shall be admissible as evidence

[2] Even in cases where the defendant acknowledged the authenticity and voluntariness of the protocol of interrogation of the defendant as to the defendant prepared by the public prosecutor, and thereafter denied the voluntariness or submitted documents, when the court acknowledged the voluntariness of the statement in light of various circumstances, such as the contents of the protocol, the reasons why the protocol was prepared, the defendant's statement related to the crime in the court, etc., and when the first statement recognized the voluntariness of the statement,

[3] Fraud is established by deceiving another person by deceiving him/her to cause mistake and inducing his/her dispositive act to gain property and property gains. Here, the act of dispositive act refers to a pecuniary dispositive act either granting property or giving property gains to a criminal, etc., and the defrauded is not only a person who has the authority to dispose of property or property gains, but also a person who has the authority to do so.

[4] The case holding that the members of the Lease Company Management Committee shall be deemed to be the part of the defrauded in the conduct of fraud by means of so-called "public lease" at the location of the branch of a lease company

[5] The defendant appealed the judgment of the court of first instance on the sole ground of an unreasonable sentencing. In such a case, the defendant cannot make a ground of appeal against the judgment of the court of first instance for appeal that there is an error of mistake

[1] Article 312 of the Criminal Procedure Act / [2] Article 312 of the Criminal Procedure Act / [3] Article 347 of the Criminal Act / [4] Article 347 of the Criminal Act / [5] Article 38

[1] [2] Supreme Court Decision 95Do2930 delivered on March 8, 1996 (Gong196Sang, 131) / [1] Supreme Court Decision 91Do314 delivered on April 23, 1991 (Gong1991, 1561), Supreme Court Decision 200Do2617 delivered on July 28, 200 (Gong200Ha, 1976) / [2] Supreme Court Decision 94Do1318 delivered on August 9, 1994 (Gong194Ha, 2317), Supreme Court Decision 96Do9398 delivered on August 23, 196 (Gong196Ha, 2935) 97Do9799 delivered on May 16, 197

Defendant 1 and one other

Defendants

Attorneys Kim Chang-hoon et al.

Daejeon High Court Decision 98No501 delivered on January 14, 1999

All appeals are dismissed.

1. As to Defendant 1’s ground of appeal

A. In a case where Co-Defendant 1 acknowledged the protocol of examination of the suspect as co-defendant 2 in the court, the protocol is admissible as evidence (see, e.g., Supreme Court Decisions 91Do314, Apr. 23, 1991; 95Do2930, Mar. 8, 1996; 200Do2617, Jul. 28, 200). According to the records, the third protocol of examination of the defendant 2 prepared by the court below as evidence of guilt against the defendant 1 was established and voluntariness on the 5th trial date, and it is not admissible as to the above facts charged by the defendant 1. On the other hand, even if the defendant acknowledged the authenticity and voluntartariness of the protocol of examination of the defendant prepared by the public prosecutor, the court's protocol of examination of the defendant 2 prepared in the court below as evidence of the first 97 prosecutor's protocol, and it is still admissible as evidence of the defendant's testimony of the defendant 97.

B. Examining the adopted evidence of the judgment of the court below and the court of first instance cited by the court below in light of the records, Defendant 1 submitted a written approval of examination accompanied by false documents as if he actually purchased leased articles in collusion with the co-defendant 1 of the court below, and deceiving members of the management committee of the Korean Lease Co-Defendant 1 of the victim. It can be sufficiently recognized that he obtained loan of KRW 599,100,000 from the above co-defendant 1 of the court below to obtain the loan of KRW 599,10,000, and acquired it by fraud. In full view of all the circumstances such as the lease loan circumstance of Defendant 1 of the above co-defendant 1 of the court below and the situation after receiving the loan, the judgment of the court below is deemed to have expressed the intent of fraudulent and illegal acquisition. Thus, the court below did not err in the misapprehension of legal principles as to intention of intentional or unlawful acquisition, or in the misapprehension of the rules of evidence without proper examination.

C. Fraud is established by deceiving another person to cause mistake and causing a dispositive act, thereby gaining property and property gains. Here, “dispositive act” refers to an act of disposal either granting property or giving property gains to an offender, etc. (see, e.g., Supreme Court Decisions 87Do1042, Oct. 26, 1987; 99Do1326, Jul. 9, 199). The defrauded is not only a person who has the authority to dispose of property or property gains, but also a person who has the authority to do so.

However, examining the adopted evidence of the judgment below and the judgment of the court of first instance cited by the court below in light of the records, it is reasonable that the lending of lease funds exceeding KRW 500 million has full power in the management committee in the case of a victim citizen lease corporation, and that the co-defendant 2, the head of the above Busan Busan branch office, only submits a written approval of examination to the management committee, so it is reasonable that the court below considers the members of the management committee as the defrauded and takes the criminal act of this case as the part of fraud, and there is no error of law by misapprehending the legal principles on the part of the defrauded and disposition authority in fraud, as otherwise alleged in the ground of appeal

2. As to Defendant 2’s ground of appeal

According to the records, Defendant 2 appealed the judgment of the court of first instance on the ground of unfair sentencing only as the grounds for appeal. In such a case, Defendant 2 cannot be deemed as the grounds for appeal that there was an error of misconception of facts against the judgment of the court of first instance (see, e.g., Supreme Court Decisions 94Do2134, Feb. 3, 1995; 96Do2076, Nov. 8, 1996). Furthermore, in light of the records of the court below and the selected evidence of the court of first instance cited by the court below, Defendant 2, despite being aware that Defendant 2 was "the so-called "public lease," in which the instant lease was performed without installing the object of lease in order to raise the performance as the head of the Busan branch office of the victim national lease corporation, in collusion with Defendant 1 of the court below, thereby deceiving the members of the management committee of the victim national lease corporation, and thus, Defendant 1 of the court below did not err by misapprehending the facts by violating the rules of evidence without proper deliberation.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)